Silicon Valley Watcher - reporting on the business of technology and media

Silicon Valley is a large consumer of legal services and those services are wildly expensive, so beancounters across the Valley must have perked up at a Wall Street Journal article about Cisco's efforts to stem the cost of their lawyers.

Cisco has largely deep-sixed the billable hour and is paying its two major outside law firms on a fixed-fee basis.

"Typically, large numbers of associates go off and write memos that get tucked into the lower right-hand side of someone's drawer," says Gordon Davidson, chairman of Fenwick & West LLP of Mountain View, Calif., the firm that represented Cisco Systems in its WebEx purchase. Using a monthly fixed-fee arrangement, he says, Fenwick lawyers have cut down "on stuff that we were doing that was interesting, but not that useful."

Cisco pays for about 75% of its $125 million legal bills on a fixed-fee basis. And no wonder. GC Mark Chandler (that's him on the left testifying before Congress about collaboration with China) estimates he has trimmed his outside legal bill by 25%. One key reason may be found in a recent study by law professor Bill Ross, which found that two-thirds of lawyers said they had "specific knowledge" of bill padding. More than half said they had performed unnecessary tasks in order to bump up their invoices, the WSJ Law Blog reports.

So bypassing the billable hour can remove huge temptation by lawyers to bilk their clients. With $125 million legal budget, how is Cisco going to notice a certain memo really took 10 hours not 14?

On the other hand, with the size of its budget, companies like Cisco can make even powerhouse lawyers like Fenwick and West (which does Cisco's corporate work) pay attention. And Fenwick is willing to play along because new technology makes estimating the amount of work involved much more predictable.

New tools are helping both sides estimate costs up front, giving general counsels more confidence to move ahead with arrangements like fixed fees and "value-based billing," in which the payment a firm gets depends in part on the results it achieves.

The boosts have mostly come from off-the-shelf electronic-billing and "matter-management" software programs. Over time, as data accumulate, general counsels' offices are able to organize cost information on everything from a group of 20 patent filings to a large single task like reviewing three million document pages.

Cisco's experience with Morgan Lewis, which handles the company's litigation, shows that it will be quite a while before the legal industry is happy about this new arrangement - ML figured they made about 15% than they would at billable rates - but that ultimately this is where lawyers need to go:

Ms. McKeon and Mr. Davidson at Fenwick say the Cisco arrangements are now profitable, though not hugely so. "You don't want your law firm making a huge profit," says Ms. McKeon, "but you don't want your law firm taking a hit either. They're not going to give you the same level of service."

The Supreme Court yesterday made it substantially harder to get a patent in its decision in KSR v Teleflex, says the Wall Street Journal's Law Blog. That's got to be good news for the tech industry, where patents have become a game of mutually assured destruction, the most miniscule "inventions" getting patented, companies doing defensive patenting through reverse engineering of competitors products, and so on.

The Law Blog offers up a compendium of comments on the case, which centers on the definition of obviousness, one of the twin pillars of patent law (the other being novelty.) In this case, the Court threw out an automotive patent, saying it was an obvious application of prior art.

Michael Barclay, Wilson Sonsini, from SCOTUSblog: This decision makes it far easier to invalidate patents based on obviousness. Thus, this is the most important patent case of the last 20 years, and perhaps since the passage of the 1952 Patent Act.

James Dabney, Fried Frank, lawyer for KSR: The decision should greatly lower the cost and uncertainty of patent litigation. The Court held that the preemptive effect of prior art was a “legal determination” that could be resolved by way of a pretrial motion for summary judgment. The Court further held that United States courts have — and always have had — much greater authority to deem patent claims invalid than the Court of Appeals for the Federal Circuit had acknowledged between 1983 and at least 2005.

Peter Sullivan, who filed amicus briefs for Cisco and others: Now, all knowledge in the relevant field — technical knowledge, changes in implementing technologies, consumer demand — will be available to show whether the invention was truly innovating or just the product of connecting the dots in the prior art. The Court’s opinion will allow the Federal Circuit to develop a more flexible framework in which to judge obviousness, and it should help stem the flow of patents of questionable value being issued by the PTO.

A federal judge in Philadelphia invalidated the Child Online Protection Act, which makes it a crime for websites to allow anyone under 17 to access sexual material, saying that the government failed to show that filters are ineffective and that the law infringes on free speech, The Washington Post reports.

"Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection," Senior U.S. District Judge Lowell Reed said in issuing the permanent injunction, noting his "personal regret" at having to reject an attempt to protect children from harmful material.

The American Civil Liberties Union brought the suit on behalf of website owners. ACLU Executive Director Anthony D. Romero said: "The courts have ruled, once again, that speech on the Internet is protected."

"Had the decision gone the other way," ACLU staff attorney Chris Hansen said, "the Web would have had to dumb down. It would have made the entire Web homogeneous and bland so that a 6-year-old could read everything on the Web without anyone objecting."

A large part of the judge's decision was an analysis of the effectiveness of web filters. he said that filters were widely available and often free. Even the government's own expert witness concluded that software filters are effective, most blocking at least 95 percent of sexually explicit Web pages.

The law is overly broad and vague, Judge Reed said. Requiring a credit card system wuld be unduly burdensome to websites and requiring personal information would be an invaasion of users' privacy.

The Post qutes Aaron Kenny, CTO of SafeBrowse, who suggests that the court only looked at filtering the Web but not interactive net technologie like VoIP or video over IM.

"The capabilities to intercept video and those sort of things is a technology that really hasn't come around yet," Kenny said. "In the end, it always comes down to the parent to protect their children."

On her Lawgarithms blog, Denise Howell picks up the thread that Google is not exactly averse to this Viacom suit, which may mean that it won't settle as quickly as some may think.

She cites Katie Hafner's October 06 look at Google's legal eagles:

Michael Kwun, a senior litigation counsel at Google, ... said that establishing a body of precedent was a priority for Google, especially as legal interpretations continued to evolve. “If we don’t at least litigate to the point where we get rulings on the issues that matter to us, we’re left with less clarity in the law,” he said.

And EFF's Fred von Lohmann, as interviewed by John Battelle:

I've thought for some time that the first lawsuits against YouTube (and other video hosting services) will be from small copyright owners (like LA News Service), not from major media companies. That's good news for YouTube (and Google). Small timers tend to lack the resources to bring top-drawer legal talent to bear in these fights. As a result, they often lose, creating useful precedents for the Google's of the world. In fact, Google has already been successful in securing good precedents against unsophisticated opponents who thought that they could squeeze a quick settlement out of Google (Field v. Google, Parker v. Google). What the small-timers don't appreciate is that Google would much rather spend money on setting a good precedent than on settling.

So I think the YouTube acquisition may well represent a legal opportunity for Google (and the Internet industry generally), rather than a vulnerability. After all, litigation to define the copyright rules for new online services is inevitable -- better to choose your battles and plan for them, rather than fleeing the fight and letting some other company create bad precedents that will haunt you later.

So the Viacom suit is different than a lot of the victories Google has lined up so far. Viacom will bring top legal talent to the battle and it won't be surprising to see them win at the District Court level in New York. Notes Siva Vaidhyanathan:

Look, when it comes to copyright, the Southern District of New York and the Second Circuit do not make good law. Learned Hand has been dead a long time. The chances of good law coming out of the home turf of Time Warner, Viacom, and the News Corporation at the behest of some punk-kid company from California are as slim as those of good wine coming from New York. I sure wish New York produced good wines. And I wish SDNY and the Second Circuit understood digital copyright better (see Universal v. Reimerdes). But we shall be waiting a long time for both these things.

So I finally read Viacom's complaint against Google and from a legal perspective I find it strange. The complaint is completely based on the Copyright Act and completely ignores the DMCA's Safe Harbor provisions.

This section of the DMCA essentially says that "service providers" will not be liable for user-submitted content if it's posted in an automated process. The other major part of the law provides that the content owner can provide a "take down" notice; if the service provider doesn't comply, then it becomes liable for the infringement.

While Viacom doesn't attack the Safe Harbor directly, it strongly suggests the law is unfair to content owners.

Even though Defendants are well aware of the rampant infringement on the YouTube website, and YouTube has the right and ability to control it, YouTube's intentional strategy has been to take no steps to curtail the infringement from which it profits unless notified of specific infringing videos by copyright owners, thereby shifting the entire burden - and high cost - of monitoring YouTube's infringement onto the victims of the infringement.

In other words, YouTube is accused of doing exactly what the DMCA says it should do - wait for a take-down notice.

Google will claim the Safe Harbor provisions in their defense and, as I see it, Viacom will need to show that Google was not in compliance with those provisions, that they in some way encouraged or selected or promoted copyright-infringing material. Thus, they should lose.

Which will suit them fine, because the appeal will go to the legitimacy of the Safe Harbors. On appeal, Viacom, with amici from the rest of the content industry, will argue that the sharing and embedding aspect of YouTube was unforeseeable by the drafters of the DMCA and that the current reality illegitimately impinges too far on copyright protection. That Safe Harbors are in fact unconstitutional.

To be sure, Viacom is alleging that Google did more than serving as a conduit for user-uploaded content. But the ways in which YouTube is alleged to have broken the rules are basically a description of Web 2.0:

YouTube returns a list of thumbnails of matching videos in its library ... YouTube also allows any person to "embed" any video available in the YouTube library into another website ... When a user clicks the play icon, the embedded video plays within the context of the host website ... YouTube also makes it possible for a user to share an embedded video by clicking the word "share" ... These embedded videos act as a draw to attract users to YouTube ...

The whole Internet industry is built on the Safe Harbors. Indeed, it was Congress' intent to support the growth of the Internet by freeing it from these very concerns.

"Google has basically been following the advice of the best lawyers in Silicon Valley," EFF's Fred Von Lohmann said. "If Viacom wins, that would call into doubt all of the business models that relied on the same kinds of legal advice."

Can Google have its cake and eat it too? That's what Tom wonders in this follow-up post to my report on a federal decision that Google has the right to refuse advertising as it sees fit.

Tom wrote: "An ISP can argue that it is just a pipe, a bit carrier, and therefore has the protection of the [Communications Decency Act]."

But the CDA protection is much broader than this. In fact it's really aimed at user-created content, protecting "online services" from liability for what users post. In one case, a service was found not liable for some very clearly libelous things a user wrote about a starlet.

And just recently, as I reported two weeks ago, the CDA was found to protect MySpace against liability for an online predator's use of the service. In that case, the court said:

"To ensure that Web site operators and other interactive computer services would not be crippled by lawsuits arising out of third party communications, the Act provides interactive computer services with immunity."

Liability attaches for publisher-created content (for say, running "Why I Hate Blacks"), not for user-created content (thanks to CDA.) So long as Google doesn't create any original content, it seems to me they don't have liability concerns for such things as libel.

And this is not just District Court judges. The First Circuit just released a decision that Lycos and Terra Networks are immunized from lawsuits based on user postings (PDF).

So, if newspapers are at a disadvantage because they have liability, the answer is obvious. Publish stuff on other people's online services and turn the paper's site into a linkbucket. Hmm, no business model there. But I don't think liability is really the issue.

The issue of media competitiveness has to do with who delivers the best value for advertisers and how people want to take their journalism. I think they want journalism to be part of an intelligent conversation, that takes in new information and perspective and doesn't just adhere to an inverted pyramid or he-said, he-said formula. Papers are clearly losing the advertising front and they've made only modest gains on the second.

A federal judge has dismissed a case against Google that challenged the search engine's right to refuse advertising. In his ruling (PDF), the judge handed Google, Yahoo and Microsoft a big fat juicy win, saying that search engines can refuse advertising for any reason - and they don't have to say why.

The plaintiff, Christopher Langdon, was suing Google, Yahoo, Microsoft, Time Warner and AOL for refusal to run his ads. The complaint focused mainly on Google and its refusal to specify the reason for the rejection.

In essence, the judge answered the topic that's been tearing up these pages this week: Is Google a media company? Simply, yes. Search engines are constitutionally similar to newspapers, the decision says and they have the same limited First Amendment rights as newspapers to accept or reject advertising.

Eric Goldman has an excellent review of the decision. He highlights the main points.

• Search engines have a First Amendment right to reject ads as part of their protected right to speak or not (see Miami Herald v. Tornillo). This opinion is consistent with the uncited Search King ruling, although that case framed Google's Page Rank as protected opinion.

• Search engine decisions to reject ads is protected by [the Communications Decency Act] as a legitimate decision to filter "otherwise objectionable" content. The court concludes that "Section 230 provides Google, Yahoo, and Microsoft immunity for their editorial decisions regarding screening and deletion from their network." I'm expecting the KinderStart judge to protect Google's ranking choices under 230(c)(2) as well. (In case you're wondering, we're still waiting for the KinderStart ruling that was promised by the end of 2006.)

• Search engines aren't state actors and are not bound by the First Amendment, so they do not deprive advertisers (such as Langdon) of First Amendment rights by rejecting their advertising. This opinion is consistent with at least a dozen other cases holding that private IAPs and websites aren't state actors.
  

In finding for Google, the court said that the First Amendment protects not only the right to speak but the right not to speak and cited three newspaper cases that protect a publisher's right to refuse advertising. Indeed, search engines are in an even stronger position than publications, because while newspapers face liability claims for what they publish (such as libel claims), "online service providers" to not. That's because of the Communications Decency Act, which explicitly "forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions." (Ben Ezra, Weinstein Inc. v AOL, 206 F.3d. 980.)

In the future, search engines need not worry about giving explanations to every advertiser it rejects. The ruling makes clear they can now reject without explanation.

This will save Google time and frustration--they can just invoke that standard sign over the cash register: We reserve the right to refuse service to anyone," says Dana Todd, president of the Search Engine Marketing Professional Organization and co-founder of SiteLab, a search engine marketing agency.

So the bottom line, says media and tech attorney Jon Hart, according to Forbes:

Next time, the defendant will pull up a copy of this opinion. Google is not the public square, it is a media company."

Across the country, lawmakers are targeting crimes against children for special, perhaps unconstitutional, treatment. Bills are being introduced and passed to require released sex offenders to register their emails and IM names - violation would be a felony; to make parole violations into aggravated felonies; and to outfit sex parolees with GPS tracking devices for 24/7 monitoring. An email registration bill has also been introduced in Congress.

Against this backdrop comes a decision by a federal court in Texas that MySpace cannot be sued for negligence by the family of a girl who was sexually assaulted by a man she met through News Corp's social networking service. The reason? The federal Commuunications Decency Act gives "interactive services" immunity from lawsuits based on user postings and content.

Passed in 1996, the CDA was passed to allow Internet businesses to grow without fear of lawsuits. The family says they will bring suit in state court to pursue the issue. But it's likely that the CDA preempts any state law to the contrary.

The world's changed a lot in 10 years and it's a matter of Internet legend that the Net is filled with sex addicts, perverts and kiddie porn. No matter if the number of MySpace-initiated assaults is tiny, the social sense is that kids are at risk through social networking and corporations like News Corp are profiting.

With that backdrop, how long before Congress looks at the CDA and says: The Internet no longer needs the help of the CDA, which is protecting corporations from being held to account when children are harmed: time to repeal?

Republicans can make it an anti-pervert, pro-family initiative. Democrats can make it an pro-little guy, anti-corporation initiative. Bipartisanship never looked better.

But the CDA is crucial to Web 2.0 and the wealth of startups, to MySpace and Facebook and YouTube and really any business with user-generated content (isn't that every tech business, these days?) So, while no one is Congress has yet suggested a repeal, I think the gathering storm against crimes against children puts the CDA in real danger.

Thoughts?

The 7th Circuit Court of Appeals ruled last week that police can place a GPS tracking unit on a suspect's car without obtaining a search warrant. In US v Garcia (2007 U.S. App. LEXIS 2272), decided Feb. 2, Judge Richard Posner found that such a device was a mere "augmentation" of police officers' natural ability to follow a car.

In the Garcia case, an informant alerted police that Garcia used meth with her and said he intended to resume producing meth; he was also taped on a security camera buying chemicals to make meth. The police found his car and attached a GPS tracking device. When they retrieved the device, they discovered that he had visited a large tract of land. They obtained consent from the owner to search the land and found a meth lab. As they were searching, Garcia drove up. They searched his car and found additional evidence against him.

Following a suspect's car is not a search, since a driver is putting himself in public view. In US v Knotts (460 US 276), police worked with a vendor to replace one of the vendor's chemical drums with one the police owned and into which they had installed a beeper. The Supreme Court held it was legal for the police to "augment" their ability to follow the suspect's car with the beeper.

A person travelling in an automobile on public thorougfares has no reasonable expectation of privacy ... Nothing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them ...

Relying on Knotts, the 7th Circuit held that the GPS unit was similar to the beeper - a mere augmentation of police ability to "tail" a car.

... [I]f police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.

There is a practical difference lurking here, however. It is the difference between, on the one hand, police trying to follow a car in their own car, and, on the other hand, using cameras (whether mounted on lampposts or in satellites) or GPS devices. In other words, it is the difference between the old technology -- the technology of the internal combustion engine -- and newer technologies ... But GPS tracking is on the same side of the divide with the surveillance cameras and the satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is GPS tracking.

Even so, Judge Posner writes, technological advancements like GPS make it all too easy for police to do wholesale surveillance of citizens.

One can imagine the police affixing GPS tracking devices to thousands of cars at random, recovering the devices, and using digital search techniques to identify suspicious driving patterns. One can even imagine a law requiring all new cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States.

None of this, under Posner's analysis, would constitute a search, although it would be an outrageous invasion of privacy. But the Fourth Amendment protects us against search, not observation of our public doings.

Personally, I think GPS tracking does cross the line. In Knotts, the police used the beeper to help them follow the suspect in their car. It "augmented" their ability to visually track the suspect, so if they lost him in traffic, they could pick him up again.

There was no "following" here at all in the Knotts sense. They simply implanted a spying device and later retrieved the device and its data. This is not observation or tailing. This is obtaining information about one's comings and goings. The police have no "faculties bestowed upon them at birth" to discover at a glance all of the travels of a suspect. To my mind that's a search - distinguished from Knotts - and a warrant should be required.

I popped into the Josh Wolf benefit and it was very poorly attended.

And it is because he doesn't have the same kind of backing that journalists-with-a-job have. Such as those at the San Francisco Chronicle facing similar US government assaults on the freedoms of expression, and journalism.

With that kind of poor support I think Josh should just give the grand jury the video tapes, there is no sense in resistance if it is not appreciated. Why spend all that time in jail if it isn't noticed? Let's choose these battles with less suffering for those involved.

All those that feel that Josh should stand up for Shield Laws and the rights of journalists were not there on Tuesday evening at the House of Shields.

Josh Wolf is a hardcore journalist and with bigger cojones than most of his peers. He should not be rotting in jail for a group of people that don't recognize his stand, or that of his stalwart family and friends, imho.

Free Josh Wolf.

....

Jailed journalist's mom asks for support for son and Bill of Rights

Reporters Without Borders took note of Josh Wolf's imprisonment for refusing to turn over evidence in a federal case. Today marks Wolf's 171st day in prison, the longest an American journalist has spent in a US jail. Wolf's jail time now surpasses the 168 days Vanessa Leggett spent behind bars. Journalists are facing increased pressure from the federal government, since there is no federal reporter's shield, unlike in California.

"Like Leggett, who was jailed for refusing to name her sources to federal judicial officials, Wolf is being held on a federal judge's orders for refusing to surrender his unedited video files," Reporters Without Borders said. "This is scandalous on two counts - the principle at stake and the length of time in prison - and speaks to a disturbing deterioration in press freedom in the United States."

The organisation added: "Other journalists are currently risking imprisonment for similar reasons. Congress cannot remain silent any longer on the key question of professional secrecy, which is accorded to journalists in 33 states of the union. We reiterate our call for a federal 'shield law' and for the rapid release of Wolf, whose work had no bearing on national security, like Leggett's."

Google is one of several bridge investors in Meraki Networks, a wireless mesh provider that Google has shown interest in regarding the San Francisco WiFi Project, Katie Fehrenbacher writes on GigaOm.

co-founder Sanjit Biswas Biswas wouldn’t specify the amount but said the round was under a million dollars. “We’d bootstrapped the company so far, so this cash is really just for growth/acceleration . . .and for the development of some products we plan to launch next year,” says Biswas. The company currently sells a $49 wireless 802.11b/g router (beta price) that allows users to build a wireless mesh network or extend the range of a municipal network.

Microsoft officially released Vista and Office 2007 to business customers. But after so much delay and build-up, the official launch of Vista is fairly anti-climactic, especially since it's still not available to consumers. Infoworld:

This is a big launch for them but for everyone else it's ho-hum," said James McQuivey, a professor for Boston University's College of Communication who specializes in marketing research and business management. "It's the biggest wait-and-see event of the week. Customers are going to wait and see when they need [Vista] and if they need it."

Paul Kedrosky points to the transcript of oral arguments (PDF) before the Supreme Court in closely watched patent case. The case has big ramifications for software because the Court may reject the current "obviousness" standard for awarding patents.

This is important stuff, and changes -- which look inevitable, based on justice comments this morning -- could have a wide-ranging impact across a range of companies in all sectors, from consumer products, to life sciences, to information technology. We had justices calling the curent Federal Circuit standard vague, gobbledy-gook, and generally un-useful to everyone except the lawyers being paid to lawyer the thing. Here is Justice Scalia pointing out how absurd the current non-obviousness standard remains, despite its supposed universality: "It is misleading to say that the whole world is embraced within these three nouns, teaching, suggestion, or motivation, and then you define teaching, suggestion, or motivation to mean anything that renders it nonobvious. This is gobbledygook. It really is, it's irrational."

(This story came out of a panel I was moderating at LinuxWorld. It was spirited session with good input from the audience.)

Eben Moglen, founding director of the Software Freedom Law Center, Wednesday called for reform of the US patent system as applied to software, because current laws are designed to protect the interests of pharmaceutical companies rather than technology companies.

Mr Moglen was speaking on a panel at the LinuxWorld trade show in San Francisco. He is one of the top lawyers in the open source movement.

"Software patents don't make much sense in the tech industry because markets move too fast. Yet the software patents put developers on guard that they could be vulnerable to future claims," said Mr Moglen.

He said that tech companies were having to register software patents as a defensive move, and that none could "unilaterally disarm" and stop filing for patents. And with potentially many rights holders in software, negotiating licenses becomes very difficult and harms innovation.

He said that many companies were having to bear the burden of IP laws that have been influenced by pharma, and that it was time for the tech industry to be freed of constraints created to serve the interests of just "the few."

The Software Freedom Law Center provides legal services to corporations and developers using open source software to ensure that their projects will not encounter a possible legal challenge.

Christine Martino, vice president of Hewlett-Packard's open source and Linux business, said HP would support a move for reform of the patent system in the US and internationally. Ms Martino, speaking at the same LinuxWorld panel, said, "As a global company and with global customers, we realize that this is an issue that needs to be addressed everywhere."

Another fellow panelist, Stuart Cohen, CEO of Open Source Development Labs, a sponsor of Linus Torvalds Linux kernel work, said that US patent laws affect other countries even if their own IP laws are weak.

"Developers in other countries know that we live in a flat world, and that means that they could be vulnerable to legal challenges from IP owners in other countries," said Mr Cohen.

As Linux and other open source software grows in popularity, the community of tens of thousands of developers has built a strong legal infrastructure to protect their work from third-party challenge. The key to the success of Linux and open source has been the General Purpose License (GPL), an extremely well crafted legal document that that has so far, managed to repel or discourage any challenge.

However, the latest version of GPL has become controversial and has split the open source community, with Linus Torvalds its leading critic. And large IT vendors such as HP have said that the new GPL must have strong protection for proprietary technologies.

Mr Moglen said that the debates over the new GPL are unlikely to stall an agreement. "I believe in the wisdom of crowds, we have a community of ten thousand that have a say in this." He said he expected an agreement on the wording of the license by spring of 2007. But he also said that there would likely be two versions of the GPL, and that that was okay.

Tom Foremski, Silicon Valley Watcher

It's a snow crash kind of world--it's all about the media wars. Because now, we live totally immersed in a media world. Everything is about content, publishing and delivery.

The content is news, services, games, and it is interactive--it carries its own communications within itself.

The content is published on screens--of four kinds: TV, PC, pocket and paper (static) screens. The device that publishes the content, i.e cell phone, notebook, magazine etc, is less important than the content.

Content is a property that is copyrightable, and content owners have great legal powers to lock it down. The Digital Millennium Act gives content owners substantial control over innovation, what types of devices/software/technology can be developed.

In such a media-centric world, Silicon Valley companies had better get hip to the Hill. Washington D.C is where the disrupted industries will wage their last stand.

- - -

Please also see my post on pugnacious Ed Zander leads Tech CEO policy group.

- - -

Here is a book called Snow Crash:

I got a call from NetApp [NTAP] founder Dave Hitz and team, who are in Washington D.C as part of an East coast tour to visit with large financial services customers and legislators.

Dave Black from Voce fills in the background:

Congress is now considering the Personal Data Security and Privacy Act, and 8 other pieces of legislation designed to impose privacy, notification, and handling parameters on the storage of personal data -- in part due to high profile cases such as ChoicePoint and Mastercard. 30 other states are simultaneously considering similar legislation, and many of these laws actually contradict one another. If the federal government does not pass pre-emptive legislation, we'll soon have 50 slightly different state laws pertaining to data security -- expensive and painful for corporations.

Mr Hitz says he has been impressed by the legislators and their aids and with their understanding of the issues involved.

It is a complex subject because it requires creating best practices policies on storing, safeguarding, and destroying mountains of data that are required to be kept for up to seven years as a result of Sarbanes-Oxely and other regulations.

Silicon Valley is increasingly realizing that it has to deal with Washington D.C and get involved in the conversation--otherwise bad laws will be passed. Joe Kraus, of Excite/JotSpot has warned in SVW, about how other industries can use the law to limit what types of innovation can be done.

Easing on SOX?

Mr Hitz also mentioned that "there is a growing realization that Sarbanes-Oxely is an expensive burden for many US companies and there is talk of possibly easing the burden on smaller companies."

That would be a good thing--it's a tax on innovation, imho. But it wont happen unless there is a visible champion--a captain of industry confident enough to take the heat and the scrutiny. Any takers? John? Andy? Eric?

By Tom Foremski for SiliconValleyWatcher

The big California newspapers filed their amicus brief late last week, but if they hadn’t, the bloggers and journalist organizations have signed onto one of their own.

The Amicus brief mentions SiliconValleyWatcher's recent scoop on a story related to Apple's choice of a UK-designed chip to be used in a possible portable multimedia device, maybe the much anticipated video iPod. [ijusthopeitdoesnotattracttoomuchattentioniamnothomeand travellingforthenextthreeyears]

LA Times, AP, Merc, Chron, SPJ and publishers groups file amici briefs attacking judge's ruling

The old bloggers vs journalists debate was turned on its head Saturday when major media corporations and publishers' associations
filed an amicus brief [PDF] with the Court of Appeals in the Apple v Does case. In their filing, the media companies consistently refer to the websites as "journalists," drawing no distinction between traditonal media and online reporters.

An amicus brief was also filed by associations of Internet service providers.

Signing on to the brief were the Associated Press, Los Angeles Times Communications, San Jose Mercury News, Hearst Corp., (publishers of the San Francisco Chronicle), Copley Press (publishers of the San Diego Union-Tribune), McClatchy Co. (publishers of the Sacramento Bee), and Freedom Communications (publishers of the Orange County Register).

Also involved were professional journalists' and publishers' organizations including the Reporters Committee for Freedom of the Press, the Associated Press, the California First Amendment Coalition, California Newspaper Publishers Association, Society for Professional Journalists and Student Press Law Center.

With Hollywood and Silicon Valley, not to mention the electronic frontier community, anxiously watching the oral arguments in MGM vs Grokster yesterday, observers were hard-pressed to predict how the Court would rule in June. "The Court was clearly divided, with several justices expressing frustration over the dearth of factual findings about the magnitude of copyright infringement," the Legal Times' Tony Mauro reported.

"... Any prediction about what the court will actually decide appeared perilous," said the NY Times' Linda Greenhouse. "The justices themselves seemed taken aback."

by Tom Foremski for SiliconValleyWatcher

We had another scorcher of a week on the Watcher with coverage of two competing geek conferences. Nick Aster hit the ground running in Austin with this report on the SXSWi conference. And in San Diego, Richard Koman produced a veritable bit torrent of great copy from the O’Reilly Emerging Tech conference.

While folks like Odeo's Evan Williams made the SF-Austin-SF-San Diego circuit, the two cons neatly bifurcate geekspace. SXSW is the hipster and chickster web/UI/interaction design space, while ETech boasts a interesting mix of alpha geeks, A-list press (not counting SVW ;)), and unbuttoned biz types. One borg victim (black-clad, earpiece installed in head) paced the hallway near the pressroom yelling into his cell, "You would not believe the movers that are at this conference." And of course it was true.

One alphageek was heard to say, "This is the conference for business people who want to feel like they're at a hacker conference." But at $1250 a pop, all the geeks had speaking gigs and free passes.